Citation Nr: 1433917
Decision Date: 07/30/14 Archive Date: 08/04/14
DOCKET NO. 09-29 063 ) DATE
)
)
On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Phoenix, Arizona
THE ISSUES
1. Entitlement to an initial disability rating higher than 10 percent for degenerative disc disease of the lumbar spine ("back disability"), to include a rating in excess of 20 percent on and after August 28, 2013.
2. Entitlement to an initial disability rating higher than 20 percent for radiculopathy of the right lower extremity, to include a compensable rating on and after August 28, 2013.
REPRESENTATION
Veteran represented by: Arizona Department of Veterans Services
ATTORNEY FOR THE BOARD
Matthew Blackwelder, Counsel
INTRODUCTION
The Veteran had active military service from July 1986 to July 1990 and from January 2007 to May 2008.
This appeal comes to the Board of Veterans' Appeals (Board) from a July 2008 rating decision. Service connection was granted for degenerative disc disease of the lumbar spine, with an initial 10 percent rating. During the course of the appeal, a November 2013 rating decision granted secondary service connection for radiculopathy of the right leg, with an initial rating of 20 percent assigned from August 15, 2008, which was then reduced to a zero percent rating effective August 28, 2013. In that decision, the RO also increased the rating for the back disability to 20 percent effective August 28, 2013.
The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but also his files on the "Virtual VA" system and the VBMS system to insure a total review of the evidence.
FINDINGS OF FACT
1. The evidence of record does not show that the Veteran has ever been prescribed bed rest to treat his service connected lower back disability; or that he has, or has had, ankylosis in his lower back.
2. The Veteran's spine was shown to cause muscle spasms resulting in an abnormal gait while in service.
3. Even considering factors such as pain, weakness, stiffness, fatigability, and/or lack of endurance, at no time during the course of his appeal has the forward flexion of the Veteran's back been shown to be functionally limited to 30 degrees or less.
4. Prior to August 28, 2013, the Veteran had moderate incomplete paralysis of his right sciatic nerve from the date of separation from service. The medical evidence shows this resolved by the time of his August 2013 VA examination.
CONCLUSIONS OF LAW
1. Criteria for an initial 20 percent rating for degenerative disc disease of the lumbar spine were met as of the date of the Veteran's separation from service, but the criteria for a rating in excess of 20 percent have not been met at any time. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5242 (2013).
2. Criteria for an initial rating of 20 percent for radiculopathy of the right lower extremity were met as of the date of the Veteran's separation from service, but the criteria for a rating in excess of 20 percent prior to August 28, 2013, or for a compensable rating on and after that date, have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.124a, Diagnostic Code (DC) 8520 (2013).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Increased Rating
Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. It is also noted that staged ratings are appropriate for an increased rating claim whenever the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007).
The Veteran filed for service connection for a back disability in April 2008, while still on active duty, after his back was injured when the vehicle he was riding in struck an IED resulting in several bulging discs in his back. Service connection was granted for the Veteran's back disability by a July 2008 rating decision, which assigned an initial 10 percent rating for orthopedic impairment from the date he separated from service. The Veteran appealed the rating that was assigned, and following a VA examination in August 2013, his rating was increased to 20 percent as of the date of the VA examination by a November 2013 rating decision. That rating decision also granted a 20 percent rating for right lower extremity radiculopathy from August 15, 2008 until August 27, 2013, and a noncompensable rating thereafter. As such, the Board will consider whether an orthopedic rating in excess of 10 percent is warranted earlier than August 28, 2013, as well as whether an orthopedic rating in excess of 20 percent is warranted for the Veteran's lower back disability. The Board will also consider the appropriateness of the neurologic ratings assigned to the Veteran throughout the course of his appeal.
At this juncture, the Board also would like to provide a few words of clarification about how VA rates disabilities of the back. Having reviewed the Veteran's statements from throughout the course of his appeal, it appears that as his appeal has progressed, the Veteran has gained a better understanding of the VA disability rating schedule and how it applies to evaluating back disabilities. This is not surprising given the Veteran's intelligence. In his February 2014 letter, he acknowledged that he understood why the 20 percent rating was assigned. Nevertheless, to ensure complete understanding, the Board would like to explain that the VA schedular rating for evaluating disabilities of the back focuses not on the actual diagnosis that is rendered, such as degenerative disc disease or scoliosis, but rather on the quantifiable limitation and impairment that is caused by the disability. The VA regulations focus on both orthopedic and neurologic impairment, with the orthopedic focus largely being on the range of motion in the back and how it is impacted by factors such as pain, weakness, stiffness, fatigability, and lack of endurance. Other factors such as flare-ups and muscle spasms are also for consideration. The rating schedule also focuses on whether a medical professional has prescribed bed rest as a form of treatment.
In February 2014, the Veteran wrote a letter in which he stated that he was in agreement with the evaluation of 20 percent, as provided in the November 2013 supplemental statement of the case (SSOC). He expressed concern, however, that his back would continue to deteriorate as time went on. He indicated that he was doing everything he could to maintain muscle strength in his back, but was concerned that he might obtain evidence in the future that would show worsening in his back. The Board is hopeful that the Veteran's back will not deteriorate further, but would like him to know that if the situation arises where it does, that he is always entitled to file a new claim with VA seeking an increased rating. To do so, he should simply write to either his representative or to the VA RO and explain that he perceives that his service connected back disability has worsened. This will trigger a new review of his service connected disability.
The Board will now turn to the actual evaluation of the Veteran's back disability. The regulations provide that back disabilities are rated under either the General Rating Formula for Diseases and Injuries of the Spine or the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined. 38 C.F.R. § 4.71a.
Under the current Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 20 percent rating is assigned when intervertebral disc syndrome causes incapacitating episodes with a total duration of at least 2 weeks, but less than 4 weeks, during the past 12 months; a 40 percent rating is assigned when intervertebral disc syndrome causes incapacitating episodes having a total duration of at least 4 weeks, but less than 6 weeks, during the past 12 months; and a 60 percent rating is assigned when intervertebral disc syndrome causes incapacitating episodes having a total duration of at least 6 weeks, during the past 12 months. 38 C.F.R. § 4.71a, DC 5243.
An incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Id., Note (1).
Here, the medical evidence, including VA examination reports and VA treatment records, does not show that the Veteran has been prescribed bed rest on any occasion during the course of his appeal to treat incapacitating episodes of intervertebral disc syndrome. At VA examinations in 2013 and 2014, the examiners have specifically found that the Veteran did not have intervertebral disc syndrome.
The Board notes that the Veteran has on occasion written that his back had caused him to be bedridden for days, such as in his August 2009 substantive appeal. However, VA regulations require that bed rest be prescribed by a medical professional which is simply not shown here.
While the Veteran's back condition indisputably causes some impairment, the criteria for a rating in excess of 10 percent prior to August 2013 and 20 percent thereafter based on incapacitating episodes of intervertebral disc syndrome have simply not been met. As such, it is more beneficial to evaluate the Veteran's lower back disability under the General Rating Formula for Diseases and Injuries of the Spine.
Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is assigned for a lower back disability when forward flexion of the thoracolumbar spine is greater than 60 degrees, but not greater than 85 degrees; when the combined range of motion of the thoracolumbar spine is greater than 120 degrees, but not greater than 235 degrees; when there is muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or when there is vertebral body fracture with loss of 50 percent or more of the height.
The next higher rating of 20 percent rating is assigned when forward flexion of the thoracolumbar spine is greater than 30 degrees, but not greater than 60 degrees; when the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or when there is muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.
A 40 percent rating is assigned when forward flexion of the thoracolumbar spine is 30 degrees or less; and a rating in excess of 40 percent is not available unless ankylosis is present. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine.
As noted, the Veteran's back disability was rated orthopedically at 10 percent prior to August 2013 and at 20 percent thereafter. Having reviewed the evidence of record, the Board will assign a 20 percent orthopedic rating as of the date the Veteran separated from service based on a finding that his back disability caused spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour.
The Board recognizes that a May 2008 VA examination found no spasm, guarding or tenderness. However, in an August 2008 VA treatment record, the Veteran was noted to have muscle spasms and an antalgic gait. As such, the Board will resolve reasonable doubt in the Veteran's favor and assign a 20 percent orthopedic rating throughout the course of the appeal.
An orthopedic rating in excess of 20 percent requires either ankylosis or forward flexion of the spine to be limited to 30 degrees or less.
At no time has ankylosis been shown in the Veteran's spine, and the VA examiner in April 2014 specifically found that ankylosis was not present. As such, a higher rating is not warranted on this basis.
The range of motion of the Veteran's back has been measured on several occasions during the course of his appeal. However, at no time has it been shown that the Veteran's forward flexion has been functionally limited to 30 degrees or less, and there has been no allegation to the contrary.
At a VA examination in May 2008, the Veteran experienced pain at 40 degrees of flexion, but could flex further to 70 degrees at which point pain precluded further range of motion.
In a June 2008 VA treatment record, it was noted that the range of motion in the Veteran's back was normal for his age. In a July 2008 VA treatment record, the Veteran demonstrated 80 degrees of forward flexion. In June 2009, the Veteran was noted to have poor range of motion, but the specific limitation was not quantified. However, subsequent examinations also failed to show forward flexion limited to 30 degrees or less.
The Veteran's orthopedic back rating was increased to 20 percent as of a VA examination in August 2013 at which the forward flexion in his back was shown to be limited to 50 degrees of forward flexion. This was the first time that the range of motion was quantified to show forward flexion being limited to less than 60 degrees of forward flexion.
In a February 2014 letter the Veteran requested an additional VA examination, stating that VA would be shocked to see how much flexion he had lost. He indicated that he had good days which were great, but also bad days that were horrible, and he noted that there were a number of actions (siting for too long, walking on hard surfaces, etc.) that triggered back problems.
His request was accommodated, and another VA examination was provided in April 2014 which did show a decrease in forward flexion to 45 degrees. The examiner noted that the Veteran's forward flexion was functionally limited by weakened movement, excess fatigability, pain on movement, and disturbance of locomotion. The examiner wrote that pain, weakness, fatigability, or incoordination did not significantly limit functional ability either during flare-ups or when the lumbar spine is used repeatedly over a period of time. However, range of motion did not decrease after repetitive motion testing.
As described, at no time has the Veteran's forward flexion been shown to be actually be limited to 30 degrees or less. The Board has considered whether his forward flexion has been functionally limited to 30 degrees due to pain, weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45. See also DeLuca v. Brown, 8 Vet. App. 202 (1995). However, at no time has it been suggested that the Veteran's range of motion was so functionally limited that it restricted his forward flexion to 30 degrees or less.
To this end, it is clear that the Veteran's back has been painful for the duration of his appeal. For example, at his May 2008 VA examination, the Veteran was noted to have experienced constant lower back pain since the explosion in service. In August 2008, the Veteran estimated that his back pain was 3-4/10. In June 2009, the Veteran reported that his back pain had been worsening over the previous few months. At a January 2011 Medical Evaluation Board hearing, the Veteran stated that his lower back pain was 7-8/10 but had improved to 3-4/10, although it increased to approximately 6/10 every two weeks. The Veteran stated that the pain was at a livable level. As such, it is clear that the Veteran has experienced pain consistently throughout his appeal, which he has combated with physical therapy, stretching, anti-inflammatory medication, and a portable TENS unit.
However, the Court of Appeals for Veterans Claims (Court) has held that even if flexion was limited by pain, pain alone is not sufficient to warrant a higher rating, as pain may cause a functional loss, but pain itself does not constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 36-38 (2011) (emphasis added). Rather, pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. Id. at 43; see 38 C.F.R. § 4.40. Here, the Veteran was shown to be able to maintain range of motion even after repetitive motion testing and in spite of pain. It is true that the Veteran was noted to have poor range of motion in June 2009, but the actual restriction on motion was not quantified. Nevertheless, at multiple subsequent VA examinations, his forward flexion was still not shown to have been functionally limited to 30 degrees or less.
The Veteran acknowledged as much in his February 2014 letter in which he stated that he agreed with the evaluation of 20 percent as provided in the November 2013 supplemental statement of the case (SSOC). As explained, a schedular rating in excess of 20 percent is not warranted, but the 20 percent rating should date from the date of separation, and to that extent the Veteran's claim is granted.
The regulations governing the evaluation of back claims also provide that orthopedic and neurologic manifestations of a back disability may be rated separately and then combined. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1).
Here, a November 2013 rating decision assigned a 20 percent rating for moderate incomplete paralysis of the Veteran's right sciatic nerve from August 15, 2008 until his August 2013 VA examination under 38 C.F.R. § 4.124a, DC 8520.
Under this DC, 10, 20, and 40 percent ratings are assigned for mild, moderate, and moderately severe incomplete paralysis of the sciatic nerve. A 60 percent rating is assigned if the incomplete paralysis is severe, with marked muscular atrophy.
The Board notes that words such as mild, moderate, and severe are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just. 38 C.F.R. § 4.6.
Reviewing the record, the Board believes that a separate compensable rating was appropriately assigned for the neurologic impairment as a result of the Veteran's back disability, and that the rating was appropriately reduced once the neurologic impairment resolved. However, it appears that the onset of the neurologic impairment coincided with the traumatic incident in service and did not resolve until extensive physical therapy several years into the Veteran's appeal. As will be discussed, even at the first VA examination in May 2008 it was reported that the Veteran was experiencing some radiation into his right lower extremity. As such, the Board believes that the compensable neurologic rating should date from separation - and not from August 15, 2008.
Turning to the evidence of record, in May 2008, the Veteran underwent a VA examination at which it was noted that CT scans had shown bulging discs in the Veteran's back as a result of his Humvee striking an anti-tank mine. It was noted that since the incident, the Veteran had experienced some radiation down his right lower extremity to the toe. The radiation occurred approximately three times per week for five minutes. Deep tendon reflexes were 2+ and equal at the knee and ankle. There was normal sensation to light touch in both feet and all toes.
In a July 2008 VA treatment record, the Veteran was noted to have right lower extremity radiculopathy. In August 2008, the Veteran was seen for chronic lower back pain with intermittent right lower extremity radiculopathy.
In July 2008, the Veteran filed a notice of disagreement in which he indicated that he had two bulging discs which caused nerve root compression and shooting pain down his right leg.
In June 2009, the Veteran's knee and ankle jerks were 2+ and symmetrical, but he was noted to be experiencing worsening back pain and sciatica. However, straight leg raises were negative bilaterally, and the Veteran had no motor deficits in his lower extremities. He did have some sensory loss to pin prick in his fourth toe.
In July 2009, the Veteran was seen with complaints of lower back pain with intermittent pain radiating down his right lower extremity. It was noted that the Veteran had undergone some physical therapy, but not a full course of aggressive physical medicine. He reported worsening pain in his back and right leg that was disabling at times. The Veteran was using a TENS machine, anti-inflammatories and stretching. On physical examination, the Veteran demonstrated poor flexibility in his back and some numbness in his foot. It was planned to do aggressive physical therapy, and if sustained relief was not achieved, to consult a neurosurgeon.
At a January 2011 MEB evaluation, the Veteran stated that his lower back pain was 7-8/10 but had improved to 3-4/10, although it increased to approximately 6/10 every two weeks. The Veteran stated that the pain was at a livable level, without any radiation down his leg for more than a year. The Veteran asserted that his lower back pain had become stable because of his extensive, and extended physical therapy sessions. He also noted that he sat in an ergonomic chair at work and frequently got up to walk about and to stretch. However, he indicated that he was no longer able to run, lift equipment, wear the required military equipment or stand/sit for any length of time.
On August 28, 2013, the Veteran underwent a VA examination. The examiner noted that the Veteran was credible without non-physiological findings, and his subjective complaints matched the objective findings. Muscle strength testing was 5/5 throughout the lower extremities bilaterally and no muscle atrophy was present. Reflex and sensory testing were both normal in the lower extremities. Straight leg raises were negative. The examiner stated that the Veteran did not have radiculopathy impacting either lower extremity, and he did not have any other neurologic abnormality.
The Veteran was provided with an additional VA examination in April 2014. Strength testing was normal in the lower extremities, and no muscle atrophy was seen. Reflex and sensory testing were both normal in the lower extremities. Straight leg raises were negative. The examiner stated that the Veteran did not have radiculopathy.
As noted, it is clear that the Veteran was experiencing some neurologic impairment in his right lower extremity when he first filed his claim. It is noted that the November 2013 rating decision indicated that it was assigning a finding of moderate incomplete paralysis based on a finding of mild weakness and numbness. As such, it appears that the Veteran was adequately, and arguably generously, rated for his neurologic impairment. As noted in the record, the Veteran's neurologic impairment was initially described as "some radiation" that occurred approximately three times per week for five minutes at a time.
Even as his back pain and sciatica was reported as worsening in June 2009, the Veteran's knee and ankle jerks were 2+ and symmetrical, straight leg raises were negative bilaterally, and the Veteran had no motor deficits in his lower extremities. His only objective neurologic symptom was "some" sensory loss to pin prick in his fourth toe.
The Board is not attempting to minimize the neurologic impairment that the Veteran has experienced, but is merely trying to quantify the impairment that is shown into mild, moderate etc.
Here, the adjectives used to describe the Veteran's neurologic impairment were mild in nature. As such, the Board concludes that a neurologic rating in excess of 20 percent was not warranted at any time.
The Board also finds that the noncompensable rating was also appropriate as of August 2013. As noted, the Veteran acknowledged in January 2011 that he had not experienced any radiating pain down his leg for more than a year. Likewise, neurologic testing at his VA examinations in 2013 and 2014 did not identify any neurologic impairment.
As such, a higher neurologic rating is denied.
The Board has also considered whether referral for consideration of an extraschedular rating is warranted, noting that if an exceptional case arises where ratings based on the statutory schedules are found to be inadequate, consideration of an "extra-schedular" evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities will be made. 38 C.F.R. § 3.321(b)(1). The Court has held that the determination of whether a claimant is entitled to an extraschedular rating under § 3.321(b) is a three-step inquiry, the responsibility for which may be shared among the RO, the Board, and the Under Secretary for Benefits or the Director, Compensation and Pension Service. Thun v. Peake, 22 Vet. App. 111 (2008). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. This means that initially there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is adequate, and no referral is required. If the criteria do not reasonably describe the claimant's disability level and symptomatology, a determination must be made whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. § 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). See id.
The Board finds that the schedular evaluations assigned for the Veteran's service-connected back disability are adequate in this case. The Veteran's primary back symptoms include pain, limitation of motion, and neurologic impairment, all of which have been specifically contemplated as discussed above. Moreover, there is nothing unique or unusual about the Veteran's back disability. The Board notes that the Veteran has reported being unable to do some of the requirements of his job as a result of his service connected back disability, but the schedular rating that is assigned is assigned specifically in acknowledgement of the fact that the back disability causes impairment with employment. As such, the assigned schedular evaluations are considered to adequately describe the Veteran's back disability and a referral for extraschedular consideration is not warranted.
The Board has also considered whether an inferred claim for a total disability rating based on individual unemployability (TDIU) under Rice v. Shinseki, 22 Vet. App. 447 (2009) has been raised. Here, the Veteran is currently working, and the most recent VA examiners have noted that while the Veteran is restricted in his employment possibilities he is able to do sedentary work, and the Veteran has not alleged that he is unemployable solely on account of his back disability. Thus, the Board finds that Rice is inapplicable to his back claim.
II. Duties to Notify and Assist
Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). In this case, required notice was provided and neither the Veteran, nor his representative, has either alleged, or demonstrated, any prejudice with regard to the content or timing of VA's notices or other development. See Shinseki v. Sanders, 129 U.S. 1696 (2009). Thus, adjudication of his claim at this time is warranted.
As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). VA treatment records have been obtained, and the Veteran has not alleged receiving any private treatment for his back disability. Additionally, the Veteran was offered the opportunity to testify at a hearing before the Board, but he declined.
The Veteran was also provided with several VA examinations (the reports of which have been associated with the claims file), which the Board finds to be adequate for rating purposes, as the examiners had a full and accurate knowledge of the Veteran's disability and contentions, and grounded their opinions in the medical literature and evidence of record. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Moreover, neither the Veteran nor his representative has objected to the adequacy of any of the examinations conducted during this appeal. See Sickels v. Shinseki, 643 F.3d, 1362, 1365-66 (Fed. Cir. 2011). The Veteran did at one point request an additional examination, but one was subsequently provided.
As described, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal.
ORDER
A 20 percent orthopedic rating for the Veteran's degenerative disc disease of the lumbar spine is granted from the date of separation from service to August 28, 2013, subject to the laws and regulations governing the award of monetary benefits.
An orthopedic rating in excess of 20 percent for the Veteran's degenerative disc disease of the lumbar spine is denied for any time during the appeal period.
A 20 percent rating for radiculopathy of the right lower extremity is granted from the date of separation from service to August 15, 2008, subject to the laws and regulations governing the award of monetary benefits.
A neurological rating in excess of 20 percent for the Veteran's radiculopathy of the right lower extremity is denied prior to August 28, 2013, and a compensable rating is denied for the time period on and after August 28, 2013.
____________________________________________
MICHELLE L. KANE
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs